Thursday, February 16, 2012

The Food Bill deconstructed

I've been hearing about this Food Bill for months now. Facebook
sources tell me the Government is going to fine us for growing carrots
and lock us up for giving away our excess marrows. Hell, I've got so
many oversized zucchini's that I don't know what I'd do if it was
illegal to give them to my friends. I decided I'd better take a look for
myself.

What a stupid idea THAT was. The select committee
report, including the bill as amended, ran to 378 pages of meticulously
crafted tedium. Only another late night reader of legislative material
can comprehend the depths of stupification of which I write. By the time
I got to the end I felt as braindead as Paul Holmes on Waitangi
morning.

What comes next is not legal advice – or easy reading.
This is just a general explanation of what I think the bill means. I
need to read the bill a few more times to get the full picture but
frankly that thought makes a round with Sonny Bill Williams look
appealing. If you are responsible for a food business you need to get
some detailed advice about your specific situation. In addition the bill
is coming up for its second reading and there will be amendments made
during the Committee of the House stage after that, so it is likely to
change a bit. Nevertheless it is worth being aware of some of what it
does do, while getting some reassurance about what it doesn't.

Firstly,
the bill will not affect people who grow or process food for themselves
and their family or keep seed. The bill does affect people who sell or
trade food, including barter, but how much depends of the scale and type
of the operation. Keep in mind that barter is not the same as
reciprocal gift giving of excess harvest. Barter is a commercial
transaction (maintaining value) while gift giving is a social
transaction (maintaining relationships). The bill does not mention gift
giving at all but I'd argue it does not apply to it.

At the
lowest end of the scale, some people who trade food will have no new
obligations under the bill. They will be subject to “food handler
guidelines” but these will be educative only. This will be for things
like clubs providing food to members secondary to an activity, school
fairs, growers that sell at the farm gate or at farmers markets, very
small scale or home-based production, people who sell things like
chippies only, childcare providers where food handling is no more than,
say, cutting up apples. This is not a complete list and schedule 3 of
the bill sets it out in more detail.

The next level is where
people have to go on a public register and will have to comply with a
National Programme. These will be designed to identify and deal with
potential health risks from food production. NB This will almost
certainly not deal with things like pesticide residues or GMOs, but will
be aimed at hygiene and gross contamination etc. They will also specify
what paperwork businesses need to do to reassure the Ministry that they
are complying. National Programmes with be at three levels of hassle,
depending on type of business.

Level 3 businesses include those that make things like
alcohol and non-alcohol drinks, edible oils and margerines, food
additives (incl. vitamins and minerals), flours and grains and things
like dairies with pick 'n' mix lollies and garages that heat up pies.
Again, a full list of what is covered in set out in schedule 2 of the
bill.

The heaviest regulation comes for businesses that have to
register a Food Control Plan. This includes the food retail sector
(bakeries, dairies that make filled rolls, fish mongers and butchers),
food service sector (on premises, home or commercial delivery, take away
and mobile) and manufacturers of everything from dairy products, herbs,
dips and nuts to commercially sterilised food, dry powders and
vegetable proteins. The full list is set out in schedule 1 of the bill.

A
Food Control Plan must begin with a detailed description of the
business including the type of food it deals with and the nature of the
business. It must identify all the hazards and risks and set out how the
business will deal with them. It must also set out who is responsible
for the plan and verification procedures.
The plan can be
developed by an individual business or adapted from someone else's. It
can also be based on a template that the Ministry may develop for
different classes of business. The plan must be registered and approved -
in practise by the local authority under powers delegated by the
Ministry. There are a range of procedures for amending, approving and
appealing.

The bill also has special clauses for winemakers and
requires importers to be registered on a public register and comply with
certain requirements.

If a lot of this looks like incredibly
bureaucratic paper-shuffling, that's because it is. Making dairies write
a Food Control Plan with all the on-going verification and paperwork
that goes with it because they make filled rolls is kind of bizarre.
What's more, if the dairy gets sold the new owner has to register a new
Food Control Plan. I seriously doubt that filled rolls and samosa from
the local Four Square present enough of a health risk to New Zealanders
to warrant this kind of bureaucratic overkill.

In fact I don't
know any significant problems with the way the system operates now that
deserves this level of intervention. The current Food Act from 1981
probably does need updating but this is something far more ambitious
than that. It's Ministry empire building.

The National led
Government is slashing jobs from the public sector and looking at how it
can further tighten the screws on the poorest and most marginalised
people in our community. At the same time it is introducing legislation
that will massively increase enforcement officers to ensure that – wait
for it – the local chip shop is up to date with their verification
paperwork.

Most of the bill is not actually about how to
improve food safety. Its about how to make sure that the New Zealand
food industry obediently fills out all the necessary forms, and charge
them for the privilege. Make no mistake, the bill very carefully
empowers the charging of fees and levies, spending 12 pages on the
subject.
The bill contains provisions for the appointment and
registration of 'recognised agencies and persons', 'verification
agencies and persons' and 'food safety officers'. With almost every food
business in the country having to register and comply with either a
National Programme or a Food Control Plan, expect there to be plenty of
them.

The powers of food safety officers in particular are
concerning. They have the power to enter (using force if necessary) a
wide range of premises with or without a warrant. The power to enter
without a warrant is so unconstrained that it is hard to see why they
would ever bother to apply to get one, although its such a simple
process that they can do it on the phone if they leave it to the last
minute. If they do search without a warrant they have to give the owner
reasonable notice, unless that would interfere with the investigation.
They don't even have to produce the warrant and identify themselves if
“compliance would prejudice the successful execution of the warrant.”
for example if they forgot to bring them.

The Food Bill isn't
as bad as some of the wilder claims being made about it, but does make
you wonder what on earth they were thinking. A more conspiratorial soul
might comment that it lies at the intersection where bureaucratic and
global food corporation's interests meet. Big businesses won't be phased
by it – it probably won't be that different from what they do now, but
it will be a major compliance obstacle for small and medium sized
businesses. New businesses in particular need to spend time on making
money to pay the bills rather than filling out redundant plans and
forms. Either way this bill will be bad for the majority of food
businesses and bad for consumers. The Minister needs to challenge her
Ministry on it and start again.

"Most of the bill is not actually about how to improve food safety. Its about how to make sure that the New Zealand food industry obediently fills out all the necessary forms, and charge them for the privilege. Make no mistake, the bill very carefully empowers the charging of fees and levies, spending 12 pages on the subject."

From what I've read, the first draft of the Bill didn't distinguish between seed for eating and seed for growing. The wording was changed to make this distinction, after officials were questioned about it. It was at this stage also that language was added to clarify that barter referred to commercial transactions 'in kind' (without money), not reciprocal gifting.